A comment on exercising sixth amendment rights:
- United States v. Kirt
, 52 M.J. 699 (N-M. Ct. Crim. App. 2000). The accused testified at trial and was asked during cross-examination, “Do you admit here today that you are the only witness in this court who has heard the testimony of every other witness?” On appeal, the accused argued that this question improperly invited the members to infer guilt from the appellant’s exercise of his constitutional right to testify and confront the witnesses against him. The Court held that the question did not constitute error, but if it did, it was waived and did not constitute plain error.
- Portuondo v. Agard
, 529 U.S. 61 (2000). In summation, the prosecutor commented that the defendant had the benefit of getting to listen to all other witnesses before testifying, giving the defendant a “big advantage.” The defendant argued that the prosecutor’s comments on his presence and ability to fabricate unlawfully burdened his Sixth Amendment right to be present at trial and to be confronted with witnesses against him and his Fifth and Sixth Amendment right to testify on his own behalf. The Court rejected the defendant’s arguments distinguishing comments that suggest exercise of a right is evidence of guilt and comments that concern credibility as a witness.